Citation Nr: 0635748
Decision Date: 11/17/06 Archive Date: 11/28/06
DOCKET NO. 04-20 332A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased evaluation in excess of 10
percent for arthritis of the left knee, status post
menisectomy.
2. Entitlement to an initial compensable evaluation for left
knee laxity prior to February 23, 2004.
3. Entitlement to an increased evaluation in excess of 10
percent for left knee laxity from February 23, 2004.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christine C. Kung, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1980 to February
1986.
This matter comes on appeal before the Board of Veterans'
Appeals (Board) from an April 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida (RO) which granted a 10 percent
evaluation for status post menisectomy of the left knee with
arthritis, effective July 30, 2002. In a subsequent December
2004 rating decision, the RO granted an additional 10 percent
evaluation for laxity of the left knee, effective February
23, 2004.
The veteran testified at a June 2006 Board hearing; the
hearing transcript has been associated with the claims file.
At that hearing, it appears that the veteran raised a claim
for service connection for a back disability and right knee
disability to include as secondary to her service-connected
left knee disability. These matters are referred to the RO
for appropriate action.
FINDINGS OF FACT
1. Arthritis of the left knee results flexion limited to 90
degrees, and extension limited to 10 degrees, with pain.
2. Prior to August 7, 2003, objective medical evidence does
not reflect recurrent subluxation or lateral instability in
the left knee.
3. From August 7, 2003, medical evidence shows left knee
buckling and locking, and slight laxity of the medial and
lateral ligaments with varus/valgus testing.
4. The veteran has a 4-inch long, tender surgical scar on
the left knee.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent
for arthritis of the left knee, status post menisectomy, have
not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2005); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59,
4.71, 4.71a, Diagnostic Codes 5010, 5260, and 5261 (2006).
2. Prior to August 7, 2003, the criteria for a separate
compensable evaluation for left knee laxity have not been
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71,
4.71a, Diagnostic Code 5257 (2006).
3. From August 7, 2003, the criteria for a separate 10
percent evaluation for left knee laxity have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005);
38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a,
Diagnostic Code 5257 (2006).
4. The criteria for a separate 10 percent evaluation for a
tender surgical scar on the left knee have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005);
38 C.F.R. § 4.118, Diagnostic Code 7804 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The Board finds that VA has met all statutory and regulatory
VCAA notice and duty to assist requirements. See 38 U.S.C.A.
§§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2006);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In an August 2002 letter, VA informed the veteran of the
evidence necessary to substantiate her claim, evidence VA
would reasonably seek to obtain, and information and evidence
for which the veteran was responsible. VA also asked the
veteran to provide any evidence that pertains to her claim.
The VCAA notice requirements apply to all five elements of a
service connection claim, including the degree of disability
and the effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). In the present appeal,
VA did not provide the veteran with notice of the type of
specific evidence necessary to establish a specific
disability rating or effective date prior to the initial
rating decision. However, there is no indication that any
notice deficiency reasonably affects the outcome of this
case. Thus, the Board finds that any failure is harmless
error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2006),
rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006).
The veteran's service medical records, VA and private
treatment records, and VA examinations have been associated
with the claims file. VA has provided the veteran with every
opportunity to submit evidence and arguments in support of
her claim, and to respond to VA notices. The veteran and her
representative have not made the Board aware of any
additional evidence that needs to be obtained prior to
appellate review. The record is complete and the case is
ready for review.
B. Background and Evidence
Treatment reports from Dr. J.K.I. from July 2002 to August
2002 reflect tenderness, swelling, restricted movement, and
effusion in the left knee.
During a March 2003 VA examination the veteran reported
wearing a brace for her knee. The veteran had a 4-inch scar
on the left knee that extended from the lateral aspect above
the patella to the mid-patella. The scar was a quarter inch
wide and was thin centrally. There was no puckering of the
skin or tenderness with palpitation. The veteran had 110
degrees passive flexion and zero degrees passive extension
with consideration for pain, fatigue, weakness, lack of
endurance, incoordination, altered by repetition. Bending
the knee appeared uncomfortable at 90 degrees or greater.
The veteran walked with a limping gait, favoring the left
knee. She was able to walk on heels and toes with
difficulty. She took oxycodone for pain. There was no
instability or giving away.
VA treatment records show that the veteran wore a knee brace
for pain management and laxity. (See VA Treatment Records,
May 2003 to December 2003). In May 2003, the veteran was
seen by VA for locking of the knees and was prescribed
crutches. She reported that her knees gave out all the time.
Anterior/posterior drawer sign was negative, and the veteran
did not have excessive valgus/varus laxity. She had marked
tense effusion of the left knee, lacked 10 degrees extension,
and could only flex 45 degrees. She was assessed with a
loose body in the joint and advanced degenerative joint
disease.
The veteran was seen by VA in June 2003 with complaints of
pain and giving way of the left knee. There was no effusion
to the joint. She had tenderness about the patella with some
crepitus, and was very tender about the lateral joint line.
Range of motion was from 0 degrees to 120 degrees; the
veteran had pain with flexion and extension. The veteran had
no instability with varus/valgus stress testing on extension
or flexion. She had a negative anterior drawer and Lachman
tests. X-rays reflect some arthritic change under the
patella. She had a small flabella. She had no loose bodies.
She had a lateral scar. The examiner stated that this was
typically seen with an open lateral menisectomy; he suspected
that was the surgery she had. The examiner stated that the
results of these procedures were not good and the incidence
of post-traumatic arthritis was extremely high.
An August 2003 VA treatment report shows that the veteran was
positive for new arthralgia, myalgia, weakness or joint
swelling, and was positive for knee buckling and locking.
A September 2003 VA treatment report indicates that the
veteran's knee gave out 6 days prior. She was referred to
Prosthetics for a cane and left side corset.
In October 2003, the veteran was assessed with arthritis in
the knee as she was missing her lateral meniscus. The VA
treatment report shows that she had a complete lateral
menisectomy and that she had changes on the lateral aspect of
the knee and the tibial spine. She had a small effusion in
the knee. The medial meniscus and ligaments were intact.
The veteran wore a brace and used crutches part of the time,
and had a bad limp with walking. She was very tender over
both the medial and the lateral joint lines.
A February 2004 VA treatment report noted that the veteran
missed days at work from time to time. She was treated with
SynVisc injections with little improvement. The veteran had
active range of motion from 10 degrees to 90 degrees, lateral
instability of 1 to 2+, and -5/5 muscle strength.
May 2004 VA treatment reports reflect active range of motion
from 5 degrees to 90 degrees, and 5/5 muscle strength. The
examining physician stated that the veteran would probably
need a change in occupation which required less weight
bearing, walking, and standing. She was not a candidate for
knee replacement at her age.
A November 2004 VA examination reflects daily pain. The
veteran had to wear a brace every day for joint instability
or giving away. The examiner stated that VA orthopedic
records showed lateral instability on February 23, 2004, and
no instability on June 10, 2003. The examiner indicated that
this did not affect her usual occupation, except that she
could not bend, stoop, or work the window because she could
not stand all day in her occupation as a post office clerk.
There was no additional loss in range of motion due to pain,
fatigue, weakness, and lack of endurance following repetitive
use. She had slight laxity of the medial and lateral
ligaments in the left knee with varus/valgus testing in 30
degrees of flexion and extension. The left knee was stable
in the anterior and posterior cruciate ligament with
Lachman's and anterior drawer testing. The examiner stated
that the veteran appeared to have a lot of knee pain and
could not hold one position for long during the examination.
There was anterior tenderness along the sides of the patella
and posterior knee, guarding of the left knee, and left knee
swelling. The veteran was diagnosed with residuals of status
post left knee menisectomy with arthritis, laxity, and a
tender scar. The examiner stated that the veteran's knee
condition was at least as likely as not severe, with 8 out of
10 pain; she was on a narcotic; she had the appearance of
significant pain on examination; there was knee laxity
requiring a brace; and there was a reported need for a future
knee replacement.
C. Law and Analysis
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities. The
percentage ratings are based on the average impairment of
earning capacity and individual disabilities are assigned
separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.1 (2006). If two evaluations are potentially
applicable, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that evaluation; otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7 (2006). Any reasonable
doubt regarding a degree of disability will be resolved in
favor of the veteran. 38 C.F.R. § 4.3 (2006).
The Board notes that the United States Court of Appeals for
Veterans Claims (CAVC) has distinguished a new claim for an
increased rating of a service-connected disability from a
case where the veteran expresses dissatisfaction with an
initial rating of a disability that has just been service-
connected. See Fenderson v. West, 12 Vet. App 119 (1999).
In the latter case, VA must assess the level of disability
from the date of initial application for service connection
and determine whether the level of disability warrants the
assignment of different disability ratings at different times
over the life of the claim, a practice known as a "staged
rating." Id. In the current appeal, because the RO issued
a new rating decision in December 2004, granting an
additional evaluation for laxity of the left knee, effective
February 23, 2004, the Board will evaluate the level of
disability due to laxity of the left knee both prior to and
from February 23, 2004. The Board notes that a staged rating
is not for consideration for the issue of arthritis of the
left knee, status post menisectomy.
Arthritis due to trauma is rated as degenerative arthritis.
38 C.F.R. § 4.71a, Diagnostic Code 5010 (2006). Degenerative
arthritis is rated based on limitation of motion under the
appropriate diagnostic codes for the specific joint involved.
38 C.F.R. § 4.71a, Diagnostic Code 5003 (2006). Limitation
of motion for the knees and legs in this case should be rated
under Diagnostic Codes 5256, 5260-5261. See id.
Ankylosis of the knee is evaluated under Diagnostic Code
5256. 38 C.F.R. § 4.71a (2006). A 60 percent evaluation is
assigned for extremely unfavorable ankylosis of the knee, in
flexion at an angle of 45 degrees or more; a 50 percent
evaluation is assigned for flexion between 20 and 45 degrees;
a 40 percent evaluation is assigned for flexion between 10
and 20 degrees; and a 30 percent evaluation is assigned for a
favorable angle in full extension, or in slight flexion
between 0 and 10 degrees. Id.
Other impairments of the knee are assigned a 30 percent
evaluation for severe recurrent subluxation or lateral
instability; a 20 percent evaluation for moderate recurrent
subluxation or lateral instability; and a 10 percent
evaluation for slight recurrent subluxation or lateral
instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2006).
The Board notes that words such as "severe," "moderate,"
and "mild" are not defined in the Rating Schedule. Rather
than applying a mechanical formula, VA must evaluate all
evidence, to the end that decisions will be equitable and
just. 38 C.F.R. § 4.6 (2006). Although the use of similar
terminology by medical professionals should be considered, is
not dispositive of an issue. Instead, all evidence must be
evaluated in arriving at a decision regarding a request for
an increased disability rating. 38 U.S.C.A. § 7104 (West
2002); 38 C.F.R. §§ 4.2, 4.6 (2006).
A 20 percent evaluation is assigned for dislocated semilunar
cartilage with frequent episodes of locking, pain, and
effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code
5258 (2006).
A 10 percent evaluation is assigned for removal of semilunar
cartilage which is symptomatic. 38 C.F.R. § 4.71a,
Diagnostic Code 5259 (2006).
Limitation of flexion of the leg warrants a 30 percent
evaluation where flexion is limited to 15 degrees; a 20
percent evaluation where flexion is limited to 30 degrees; a
10 percent evaluation where flexion is limited to 45 degrees;
and a 0 percent evaluation where flexion is limited to 60
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2006).
Limitation of extension of the leg warrants a 50 percent
rating where extension is limited to 45 degrees; a 40 percent
rating where extension is limited to 30 degrees; a 30 percent
rating where extension is limited to 20 degrees; a 20 percent
rating where extension is limited to 15 degrees; a 10 percent
rating where extension is limited to 10 degrees; and a 0
percent rating where extension is limited to 5 degrees. 38
C.F.R. § 4.71a, Diagnostic Code 5261 (2006).
The Board notes that, in a precedent opinion, the VA General
Counsel held that separate ratings may be assigned under
Diagnostic Codes 5260 and 5261 for disability of the same
joint. VAOPGCPREC 9-2004 (September 17, 2004).
In evaluating disabilities of the musculoskeletal system, it
is necessary to consider, along with the schedular criteria,
functional loss due to flare-ups of pain, fatigability,
incoordination, pain on movement, and weakness. DeLuca v.
Brown, 8 Vet. App. 202 (1995). Functional loss may be due to
due to pain, supported by adequate pathology and evidenced by
visible behavior of the claimant undertaking the motion. 38
C.F.R. § 4.40 (2006). Pain on movement, swelling, deformity,
or atrophy of disuse are relevant factors in regard to joint
disability. 38 C.F.R. § 4.45 (2006). Painful, unstable, or
malaligned joints, due to a healed injury, are entitled to at
least the minimal compensable rating for the joint. 38
C.F.R. § 4.59 (2006).
A claimant may not be compensated twice for the same
symptomatology, as "such a result would over-compensate the
claimant for the actual impairment of his earning capacity."
Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would
result in pyramiding, contrary to the provisions of 38 C.F.R.
§ 4.14.
Scars that are superficial and painful on examination are
assigned 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic
Code 7804 (2006). A superficial scar as one not associated
with underlying soft tissue damage. Id. at Note (1). A 10
percent evaluation will be assigned for a scar on the tip of
a finger or toe even if amputation of the part would not
warrant a compensable evaluation. Id. at Note (2).
The VA Schedule for Rating Disabilities also provides a 10
percent rating for a scar, other than head, face or neck,
that is superficial and does not cause limitation of motion,
if it is 144 square inches or more in size (929 square cm).
38 C.F.R. § 4.118, Diagnostic Code 7802 (2006). A scar can
also be rated based on limitation of function of the affected
part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2006). A
higher rating requires a scar that is deep or causes
limitation of motion. 38 C.F.R. § 4.118, Diagnostic Code
7801 (2006).
1. Arthritis of the Left Knee
The veteran was assigned a 10 percent evaluation under
Diagnostic Code 5010 for arthritis of the left knee, status
post menisectomy. As noted above, traumatic arthritis is
rating as degenerative arthritis which in turn is generally
rated based on limitation of motion of the affected joint.
Range of motion in the veteran's left knee has been measured
at 0 degrees to 110 degrees, with pain noted at 90 degrees;
10 degrees to 45 degrees; 0 degrees to 120 degrees with
additional pain noted; 10 degrees to 90 degrees; 5 degrees to
90 degrees; and 10 degrees to 90 degrees with consideration
of pain. (See VA Treatment Records, March 2003, May 2003,
June 2003, February 2004, May 2005, and November 2004).
The Board finds that veteran's disability most closely
resembles the criteria for a 0 percent (noncompensable)
evaluation for flexion limited to 90 degrees, with
consideration of pain under Diagnostic Code 5260. Id. at
Diagnostic Codes 5260. Although flexion limited to 45
degrees was recorded on one examination, the Board finds that
overall the record indicates a degree of flexion much greater
than that. The records relevant to this appeal more
consistently demonstrate flexion to 90 degrees. As such, the
Board is unable to conclude that a separate or higher
evaluation is in order for arthritis resulting in limitation
of flexion. However, the Board finds that the veteran's
disability does most closely resemble the criteria for a 10
percent evaluation for extension limited to 10 degrees, with
consideration of pain under Diagnostic Code 5261. Id. at
Diagnostic Code 5261. Functional loss due to pain, weakness
or fatigability, and limitation of motion under 38 C.F.R. §
4.40 has been considered in making this determination. See
C.F.R. §§ 4.40 and 4.45 (2006); DeLuca v. Brown, 8 Vet. App.
202 (1995). Thus, the Board finds that the veteran is
properly assigned a 10 percent evaluation under Diagnostic
Code 5010-5261, with the consideration of functional loss due
to pain. Id.
The veteran is not shown to have ankylosis of the left knee
to warrant an evaluation under Diagnostic Code 5256. See 38
C.F.R. § 4.71a, Diagnostic Codes 5256 (2006).
2. Left Knee Laxity
The veteran was assigned a 10 percent evaluation under
Diagnostic Code 5257 for left knee laxity from February 23,
2004.
The Board finds that the veteran's left knee laxity warrants
a 10 percent evaluation from August 7, 2003. March 2003 and
June 2003 VA examinations reflect no instability or giving
away on testing. An August 7, 2003 VA treatment report
notes, however, that veteran was positive for knee buckling
and locking. September 2003 VA treatment records indicate
that the veteran was seen after her knee gave out 6 days
prior; she was referred to Prosthetics for a cane and left
side corset. A February 2004 VA treatment report noted
lateral instability 1 to 2+. A November 2004 VA examination
reflects left knee slight laxity, but no instability. The
Board finds that the veteran's disability warrants a 10
percent evaluation for slight left knee laxity from August 7,
2003. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§
4.3, 4.7 (2004).
The Board has considered whether the veteran's disability
would warrant a higher evaluation under Diagnostic Code 5259,
which assigns a 10 percent evaluation for removal of
semilunar cartilage, which is symptomatic. See 38 C.F.R. §
4.71a, Diagnostic Code 5259 (2006). The November 2004 VA
examination shows that the veteran's lateral meniscus was not
identified and that there had likely been a lateral
menisectomy. Although the VA examination reflects
symptomatic removal of semilunar cartilage, the veteran's
symptoms of pain, limitation of motion, and fatigability have
already been considered in her 10 percent evaluation under
Diagnostic Code 5261. Moreover, any instability or laxity of
the left knee has been contemplated in the separate 10
percent evaluation for left knee symptomatology. As such, an
additional evaluation is not warranted for the same
symptomatology. See Brady v. Brown, 4 Vet. App. 203, 206
(1993); 38 C.F.R. § 4.14 (2006).
Medical evidence does not reflect dislocated semilunar
cartilage to warrant evaluations under Diagnostic Code 5258.
See 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2006).
3. Left Knee Surgical Scar
In her May 2003 notice of disagreement, the veteran claimed
that she had a painful scar. During her June 2006 Board
hearing, the veteran reported that her scar was numb to
touch. The Board has considered whether the veteran warrants
a compensable evaluation for a left knee surgical scar.
The March 2003 VA examiner stated that the veteran had a 4-
inch scar on the knee that extended from the lateral aspect
above the patella to the mid-patella. There was no puckering
of the skin or tenderness on palpitation. An October 2003 VA
examination shows that the veteran had a lateral scar,
typically seen with an open lateral menisectomy, and that she
was very tender over the lateral and medial joint lines. A
November 2004 VA examination reflects a tender scar on the
left knee. The Board finds that the veteran's left knee scar
is analogous to a scar that is superficial and painful on
examination under Diagnostic Code 7804. See 38 C.F.R. §
4.118, Diagnostic Code 7804 (2006). Thus, the Board finds
that the veteran warrants a 10 percent evaluation for a
tender left knee scar. Id.
The Board has also considered the potential application of
other various provisions, including 38 C.F.R. § 3.321(b)(1),
for exceptional cases where schedular evaluations are found
to be inadequate. See Schafrath v. Derwinski, 1 Vet. App.
589 (1991). However, the veteran's disability has not been
shown to cause marked interference with employment beyond
that contemplated by the Schedule for Rating Disabilities,
has not necessitated frequent periods of hospitalization, and
has not otherwise rendered impractical the application of the
regular schedular standards utilized to evaluate the severity
of the disability. Thus, the Board finds that the
requirements for referral for an extraschedular evaluation
under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v.
Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App.
218 (1995).
C. Conclusion
The Board concludes that the preponderance of the evidence is
against the veteran's claim for a higher evaluation for
arthritis of the left knee, status post menisectomy. The
Board concludes that a 10 percent evaluation is warranted for
left knee laxity from August 7, 2003. The Board concludes
that the evidence supports a separate 10 percent rating for a
tender left knee scar. In making this determination, the
Board has considered the provisions of 38 U.S.C.A. § 5107(b)
regarding benefit of the doubt.
ORDER
An increased rating for arthritis of the left knee, status
post menisectomy, in excess of 10 percent, is denied.
A separate 10 percent rating, but no more, is granted for
left knee laxity from August 7, 2003.
A separate 10 percent rating, but no more, is granted for a
tender surgical scar of the left knee.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs